Skip to main content

Full text of "Cousens v. Canadian Nurses Association, Board of Inquiry, March 1981 BOI 127"

See other formats


IN THE MATTER OF THE CO?TPLAINT OF HENRY P . CCUSENS 
OF OTTAWA ALLEGING DISCRIMINATION IN EI-IPLOYIIENT BY 
THE CAl^ADIAN NURSES ASSOCIATION, OTTAWA, CONTRARY 
TO THE ONTARIO HUMAN RIGPITS CODE 



DECISION 



DATED: flARCH 23, 1981 



E , J . RATUSIINY 
BOARD OF INQUIRY 



IN THE MATTER OF THE COMPLAINT OF HENRY P. COUSENS OF OTTAWA ALLEGING 
DISCRIMINATION IN EMPLOYMENT BY THE CANADIAN NURSES ASSOCIATION, OTTAWa , 
CONTRARY TO THE Ot:TARIO HUMAN RIGHTS CODE 

-DECISION 

This Board of Inquiry was appointed by the Minister of Labour of 
Ontario on the 15th day of April 1980, in relation to the complaint of 
Mr. Henry P. Cousens of Ottawa alleging discrimination in employment by 
the Canadian Nurses Association contrary to the Ontario Human Rights 
Code, R.S.O. 1970, c.318, as amended. 

Upon being notified of the appointment of counsel for the Ontario 
Human Rights Commission and for the Respondent, the Chairman contacted 
them with a view to establishing dates for the hearing which would be 
mutually convenient to the parties. (Mr. Cousens was not personally 
represented by counseL) The date of October 21st, 19 80 was agreed upon 
and fornial notices of hearing were issued. Subsequently, a request was 
made by Commission counsel that the hearing be postponed until December. 
With the agreement of both counsel, the date of December 15th was set 
for the hearing and it did, in fact proceed, in Ottawa, on the 15th, 16th, 
17th and 19th of December. 

The Complaint of Mr. Cousens alleges that he was discriminated 
against in his employment because of his ancestry, in violation of 
section 4(1) (b) of the Code. 



. . ./2 



T 2 ~ 

At the outset of the hearing, counsel for the Commission indicated 
that, in addition to "ancestry", the Board would be asked to deal with 
two additional grounds of discrimination which are prohibited by section 
4(1) (b) , namely, "nationality" and "place of origin". Counsel for the 
Respondent immediately raised the objection that the Complaint had only 
specified "ancestry". It was argued that a respondent could be seriously 
prejudiced by coming to a hearing prepared to answer to a com.plaint on 
one ground, only to be met by evidence and argument in relation to a 
separate category of discrimination under the Code. 

In ruling on this objection, the Board recognized the validity of 
the contention that prejudice could result. However, it was pointed out 
that section 14c. of the Code sugaests that the mandate of a board of 
inquiry might well extend beyond the specific ground of contravention 
alleged in the complaint: 

14c. The board after hearing a complaint, (a) shall 
decide whether or not any party has contravened 
this Act ; . . . [Emphasis added] 

In other words, the board is required not merely to decide upon the 
specific ground of discrimination which has been alleged, but to hear 
the circumstances of the complaint as presented by the parties and 
decide whether or not any party has "contravened this Act" . The written 
complaint is not, therefore, in the nature of an information or indict- 
ment in a criminal case. Rather, it serves as general notice to a party 
in an administrative hearing. 



> 



^ 3 - 



Of course, these comments do not resolve the question. The com- 
plaint still serves the central purpose of satisfying the notice require- 
m.ents for a "fair hearing" in accordance with principles of Administrative 
Law. The Respondent only received notice a few days before the hearing 
that these additional grounds would be raised. Taking this into account, 
the Board ruled that it was prepared to grant an adjournment to enable 
counsel for the Respondent to conduct any further preparation which he 
might consider to be necessary as a result of the untimely notice in 
relation to these additional grounds. No such adjournment was sought. 

Nevertheless, in final 'argument , Mr. Hynna returned to his original 
objection and argued that the Board did not have jurisdiction to deal 
with these additional grounds. In his submission, a board of inquiry 
may consider only the specific ground indicated in the written complaint 
itself. Therefore, it was argued, if at any time subsequent to the 
appointment of a board of inquiry, another ground of discrimination 
becomes apparent, that additional ground can only be considered if the 
Minister of Labour makes another appointment of a board specifying the 
additional groiind. 

This Board cannot accept that argument. Section 14b. (6) which 
deals with the jurisdiction of a board of inquiry, speaks in terms of 
the board "...reaching a decision as to whether or not any person has 
contravened this Act...". Reference has already been made to section 
14c(a). Moreover, section 14b(l)(e) specifically authorizes the board 
to join additional persons as parties to the complaint. Would it not 
be anomalous for a board of inquiry to be authorized to add new parties 

. . ./4 



to the complaint but to be precluded from modifying the grounds of the 
complaint against an existing party? 

The wording of sections 14b.(6) and 14(c) (a) are sufficiently broad 
to bear the practical interpretation that a board of inquiry has juris- 
diction to amend the alleged grounds of contravention specified in a 
complaint. Surely, it was not intended that the Minister of Labour should 
have to make an additional appointment simply because, in preparation for 
the hearing, another possible ground of contravention has become apparent. 
It is clearly in the interests of all of the parties and the citizens of 
Ontario that the substantial complaint be dealt with at one hearing taking 
into account all of the possible ways in which any party may have "con- 
travened this Act". 

However, it must be emphasized that the jurisdiction to modify the 
alleged grounds of discrimination, carries with it the obligation of 
providing adequate notice. Failure to provide sufficient notice to the 
parties and, where appropriate, the opportunity to adjourn for further 
preparation could result in a board of inquiry depriving itself of juris- 
diction by failing to provide a fair hearing as required by section 8 
of the Statutory Powers Procedure Act S.O. 1971 c.47, which provides: 

8. Where the good character, propriety of conduct or 

competence of a party is an issue in any proceedings, 
the party is entitled to be furnished prior to the 
hearing with reasonable information of any allega- 
/ ti-ons with respect thereto. 

In the end, the additional grounds of "nationality" and "place of origin" 
did not affect the disposition of this matter. 



. . ./5 



i 



-. 5 -. 



The Complainant, Henry P. Cousens is 5 5 years of age and a resident 
of Ottawa. His "mother tongue" is English. He joined the armed forces 
in 1943, directly from high school. Following the V^ar, he studied at 
Carleton University and received the Bachelor of Arts Degree in 1950. 
Not long afterv;ards, he re-enlisted and remained in the army for twenty- 
one years until his retirement at the rank of major. 

While in the armed forces, he was a member of the Pay Corps and 
involved in finance and administration. During this period he received 
courses in accounting management and administration as well as French 
language training. His last position was as Staff Officer, Budget, at 
Mobile Command in St. Hubert, Quebec. His responsibilities included 
monitoring the funding to bases and units as well as other expenditures, 
the transfer of funds, reconciliation of finances and the application of 
general accounting procedures. In effect, he was third in coirdnand in 
the administration of a budget of some $4 3 million. Prior to this 
(from 1966 to 1969), he served as Base Controller at the Canadian Forces 
Base in Montreal. There he was responsible for all financial matters 
at the base involving a budget of some $8 million and with a staff of 
approximately forty personnel, both military and civilian. 

In the summer of 1971, he was employed as Director of Administra- 
tion, Canadian Nurses Association Testing Service. This was a new 
position. The general duties are described in the letter (Exhibit 
C-3) offering him the position: 

In this position you will have primary responsibility 
for the delivery of tests to the respective provincial 
registering authorities. In addition you will also 

. . ./6 



have responsibility for the general administrative 
functions including accountina, purchasing, corres- 
pondence and data processing. In this position you 
v;ill report directly to the Board to keep the members 
informed . 

The "Board" referred to in this passage was the CNA Test Service Board 
which was composed of members representing the provincial nursing associ 
ations. Mr. Cousens also acted as Secretary of this Test Service Board. 

Prior to 1970, the provincial nursing associations had relied upon 
examinations which were developed in the United States. However, when 
these became unavailable for use in Canada, the Testing Service was es- 
tablished to provide the necessary examinations. These examinations wer 
developed by the Test Development Section of the Testing Service. They 
were then given to Mr. Cousens' department for typing, printing, distri- 
bution and retrieval. The Director of Test Development was Dr. Parrott. 
As Director of Administration, Mr. Cousens operated as an "equal" of 
Dr. Parrott and a good working relationship was established between them 

The examinations were used in English by all provinces in Canada 
and the North VJest Territories. In addition, French translations were 
used in Ontario and New Brunswick, The association in Quebec developed 
its own French language examinations. 

Although the Testing Service was established under the Canadian 
Nurses Association (the C.N.A.), it had operated rather independently 
under the Test Service Board. However, in 1975 and 1976, the Testing 
Service was absorbed into the administrative structure of the C.N. A. and 
became a department of the latter, with all financial responsibilities 
and control being relinguished by Mr. Cousens and assumed directly by 
the C.N.A. . 



r- 7 ~ 



Under the new organization structure, Dr. Parrott was appointed 
as Director of Testina Service and Mr. Cousens was appointed as Admini- 
strative Officer. Mr. Cousens now reported to Dr. Parrott rather rhan 
directly to the Chairman of the Test Service Board. Although Mr. Cousens' 
position was "red circled", he testified that the Executive Director of 
the C.N. A., Mrs. Mussallem, has assured him that this was not a dem.otion 
for him and that his position was secure. He understood that his salary 
was frozen while his position was being assessed and that, depending on 
the decision of the C.N. A., he might not get another increase. (In fact, 
he did subsequently receive . increases , although these might have been 
limited to "cost of livina" allowances.) Nevertheless, he concluded that 
apart from the change in .reporting, there would be no change in his duties 
and performance. 

Prior to 1976, Mr. Cousens had not received any significant criti- 
cism of his work performance. He had received salary increases and it 
was common for the Test Service Board to pass a motion indicating pleasure 
and satisfaction with his work at the end of each year. 

Hisako Rose Im'ai is a highly qualified individual with a variety of 
experience in the field of health services. She served as a research 
officer with the C.N. A. from 1970 to 1972 and returned in September of 
1977 as Director of Professional Services. During the following month, 
the Board of Directors of the C.N. A. considered a submission from the 
Test Development Officers of the Testing Service, to have their positions 
reclassified at a higher level. Although her responsibilities did not 
include the Testing Service, Miss Imai was asked by the Board of Directors 
to carry out a review of these positions.. 

.../8 



- 8 - 



Apparently, Miss Imai involved Dr. Parrott in her review since, 
early in 1978, they jointly reported to the Executive Committee that 
the review would be difficult to undertake unless the entire Testing 
Service were reviewed. They were instructed to proceed on that basis 
and did. 

At the time of this review, in early 1978, there was a full comple- 
ment of three Test Development Officers on the English side but only one 
of three on the French side. This left only one officer to complete the 
crucial work on the French "comprehensive" examination. 

Some years earlier, the policy decision had been taken to move from 
examinations which were divided into five general subject areas to "com- 
prehensive" examinations which reflected a more "holistic" approach to 
nursing. - This was a major step requiring years of painstaking develop- 
ment and hundreds of thousands of dollars. The Order of Nurses of Quebec 
had indicated that it would be prepared to use the new examinations of 
the Testing Service provided that they were not mere translations but 
were developed in French and provided that they were of sufficient quality 
in terms of content and language. In addition, the Order made it clear 
to the C.N. A. that the Testing Service as well as other services of the 
C.N. A. would have to be staffed with people who were fluent in French 
as well as in English, 

By 1978,- the delay in receiving a firm commitment from the Order 
of Nurses of Quebec was creating anxiety within the C.N. A.. In the 
words of its Executive Director: 

.../9 



- 9 -r 

There was the need to have confirmation that should 
the Association produce this very costly product, that 
we would have a market for it. . . 

We were uneasy about that lack of commitment although 
the people sat on our Committees, the test people that 
developed the test came to the Committee meetings, the 
people from the Order came to the Committee on testing 
services and we still had no commitment and we were 
getting very uneasy. The money was going down the drain 
and we were still uneasy. 

In the words of Miss Imai, if the Quebec Order were not to purchase the 
French comprehensive examinations, "we would then have to consider the 
large amount of money that had already been expended as a loss and, you 
know, cut it at that point" ; 

The absence of a commitment from Quebec also delayed the review which 
had been undertaken by Miss Imai and Dr. Parrott. While a variety of 
proposals for re-structuring the Testing Service were being considered 
by them, the ultimate choice would be significantly affected by the deci- 
sion of the Quebec Order. 

Finally, in late 1978, the senior officers of the C.r.A. and the 
Testing Service signed a "memorandum of understanding" to the effect 
that the C.N. A. would proceed with the completion of the French compre- 
hensive examination "in good faith" and in spite of the absence of a 
written commitment from Quebec. 

This cleared the way for completion of the review. A, new "structure" 
was immediately put in place which eliminated Mr, Cousens ' position and 
established the two new positions of Administrative Manager and Admini- 
strative Clerk. Mr. Cousens and then the other staff at the Testing 



./lO 







- 10 - 



Service, were informed of the change at successive meetings on December 
13, 1978. This was confirmed to Mr. Cousens by a letter dated Decem.ber 
22, 1978, from Mrs. Mussallem which contained the following passages: 

The 1980 goal of English and French Comprehensive Exam- 
inations was foremost on our minds doing this review. 
To meet this goal, the director of testing service would 
require a broader, more comprehensive administrative 
system. 

In view of the fact that the French Comprehensive Exam- 
ination will be a "new" product, it is essential that 
the candidate for the new position of Administrative 
Manager be fluently bilingual and preferrably [ sic ] a 
Francophone. As noted in our discussion with you, the 
position of Administrative Officer now becomes redundant. 

In addition to the requirements specified in this letter, a Master's 
degree was also established as a requirement for the position of Admini 
strative Manager. The position of Administrative Clerk was set at a 
salary level of approximately one-half of what Mr. Cousens had been re- 
ceiving. He did not apply for either position. He was given three 
months' notice with his termination date established as March 30, 1979. 



By letter dated December 29, 1978, Jean-Guy Bourque received con- 
firmation of his appointment to the position of Assistant Manager. He 
commenced work early in February of 19 79 and continued until the end 
of August, 1979, when he left because of his dissatisfaction with the 
nature of the position in question. 



. . ./II 



- 11 - 



Before moving to an assessment and analysis of these and other 
facts, consideration will be given to the legal questions which are 
raised by the issues in this case. There are two general propositions 
which have been adopted by previous boards of inquiry and which bear 
repeating here. The first is that in order to establish a contravention 
of the Code it is not necessary to prove that discrimination is the sole 
factor or even the most significant factor motivating the alleged dis- 
criminatory act. It need only be one factor. Counsel for the Commission 
cited R. V. Bushnell Communications Ltd. et al . C1974) 1 O.R. (2d 442) , 
Aff'd (1974) 4 O.R. (2d) 288, in support of this proposition. Secondly, 
in order to establish a contravention, it is not necessary to demonstrate 
an intent to discriminate on the part of the respondent provided a dis- 
criminatory result does, in fact, occur. Mr. Hynna conceded this proposi- 
tion. 

The more difficult question is the significance of giving employ- 
ment preference on the basis of whether or not a person is "Francophone" . 
The Ontario Human Rights Code does not bar discrimination based on lan- 
guage. Therefore, in order to establish a contravention of the Code in 
a particular case, it would be necessary to demonstrate that the pre- 
ference based on language extended to one of the grounds of discrimina- 
tion which are prohibited by the Code. The potentially relevant ground 
in this case is "ancestry". It is necessary to define the terms "ancestry" 
and "Francophone". 

The term "ancestry" is here interpreted to mean family descent. In 
other words, one's ancestry must be determined through the lineage of 
one's parents through their parents, and so on. 

.../12 



- 12 - 



This Board heard considerable argument as to the meaning of the 
term "Francophone". Counsel for the Commission suggested that in the 
Canadian context and in the context of this case, the word "Francophone" 
must be taken to mean "French-Canadian". Counsel for the Respondent, 
on the other hand, pointed out that a person may well be Francophone 
although not of French descent. A variety of dictionary definitions 
were presented, all of which relate to language spoken rather than des- 
cent. 

It is the view of this Board that the Commission's position on this 
issue is- simply untenable. 'To be Francophone is not necessarily to be 
of French descent, even in a Canadian context. The two definitions 
quoted by counsel for the' Respondent from Canadian dictionaries were 
as follows: 

Parlant le francais; dont la langue maternelle est le 
francais. (Dictionnaire General de la Langue Francaise 
au Canada) 

A native speaker of French. (Canadian Edition, Funk & 
Wagnalls, Standard College Dictionary) 

With respect to the latter definition, counsel for the Respondent sub- 
mitted that "native speaker" had to be taken in the context of a person 
who has learned French as the first language and is totally brought up 
with and fully understands that language. This Board agrees with that 
submission and, for the purpose of this case, agrees that "Francophone" 
means French-speaking in the sense of having French as one's "langue 
maternale" or "mother tongue". 



, ../13 



it 



This meaning is also consistent v;ith the key phrase in the letter 
of termination ("fluently bilingual and preferrably Francophone"). The 
context suggests, at least, a requirement beyond fluency in French. It 
suggests a person who is completely comfortable in the French language, 
and familiar with its nuances. This kind of facility is normally associ- 
ated with one's mother tongue. Moreover, this meaning is consistent with 
the testimony of Miss Imai and Mrs. Mussallem, who were responsible for 
the drafting of the letter and for establishing the requirements reflected 
in that letter for the new position of Administrative Manager, 

However, to adopt this definition is not to conclude the matter. 
The question must still be faced as to the- consequences of giving pre- 
ference in hiring to a "Francophone". Notice must be taken of the reality 
that most (although not all) of the Francophones in Ontario to-day, have 
French as their mother tongue because they are of French ancestry. Simi- 
larly, most (although not all) of those who are not of French ancestry 
are not Francophone. As Mr. Cousens stated in his testimony: "I can 
become bilingual but I could not become a Francophone". In other words, 
a potential employee can acquire fluency in a language but cannot chango 
his mother tongue. 

The issue then boils down to how closely "mother tongue" is associ- 
ated to "ancestry". Are they sufficiently related that to give preference 
in hiring on the basis of mother tongue (as opposed to fluency in language) 
could constitute discrimination on the basis of ancestry? 

This Board has concluded that "mother tongue" is, in fact, closely, 
enough associated to ancestry that to give preference in employment to 

.../14 



- 14 - 



a "Francophone" could constitute a contravention of the Ontario Human 
Rights Code on the basis of ancestry. 



Consideration has been given to the absence of "language" as a 
ground of discrimination under the Code. In contrast. Section 46 of 
the Quebec Charter of Human Riahts and Freedoms prohibits making employ- 
ment dependant upon a language other than French unless the nature of 
the duties requires the knowledge of that other language. The Guide, 
"Equal Opportunities in ' Employment " , published by the Commission des 
droits de la personne du Quebec, elaborates upon the language provisions 
in that province: 



Consequently, according to both the Charter of the 
French language and the Charter of human rights and 
freedoms, only the requirements of the job and the 
qualifications of the person shall be considered, 
not the feelings of the employer with respect to a 
particular language group. 

It is also contrary to the Charter of human .rights 
and freedoms to exclude candidates who have an ade- 
quate command of the language or languages required, 
on the grounds that they have a different mother 
tongue. Employers cannot insist upon hiring a person 
whose mother tongue is French or English; others may 
have an adequate knowledge of the language required. 

VThen the job requires the knowledge of a language, 
other than the official it is wise not merely to ask 
for a bilingual person. The job offer should define 
the level of competence required in each of the lan- 
guages. It may be specified, for example, that appli- 
cants for a given position must understand and speak 
French and English and be able to write French accep- 
tably. 



However, the absence of such a specific provision in Ontario is not 
crucial . 



. . ,/15 



r- 15 - 



In concluding that discrimination based on "mother tongue" may 
fall within the Ontario proscription in relation to "ancestry" , account 
has been taken of Section 10 of The Interpretation Act R.S.O. 1970 c.225 
requiring that legislation: 

...shall accordingly receive such fair, large and liberal 
construction and interpretation as will best ensure the 
attainment of the object of the Act according to its true 
intent, meaning and spirit. 

Consideration has also been given to the "restrictive interpretation 
technique" which precludes the encroachment upon common law rights through 
ambiguous statutory provisions. However, there is no question of ambi- 
guity here and, in any event, this technique of interpretation is not 
appropriate in relation to this modern type of "social purpose" statute. 
(See the Decision of the Board of Inquiry Re the Complaint of Roland 
Cooper, Ontario, July 27, 1973). 

This Board simply cannot ignore the close relationship of "mother 
tongue" to "ancestry", particularly where the mother tongue is French, 
in Canada to-day. It is true that a great many Canadians to-day acquire 
the mother tongue of English in spite of ancestry which is not Anglo- 
Saxon. Nevertheless, where a francophone mother tongue is acquired, it 
is usually because of dominant French ancestry". Thus, to give preference 
in hiring to an "Anglophone" may not seem to be giving preference based 
on ancestry since many Canadians abandon the language of their ancestry 
in favour of English. However, it could constitute discrimination against 
those who do not. 



./16 



- 16 - 



To take a blatant example, suppose that a storekeeper in Ontario 
insisted upon hiring only "Anglophones" as clerks. He has no personal 
feelings about non-Anglophones but is concerned that any trace of a non- 
English accent might antagonize the store's customers. The owner knows 
that some of them have strong prejudices against anything but English 
being spoken in Ontario. VJould the store-owner be permitted to preclude 
all Francophones from employment on this basis? For many Canadians of 
French descent, exclusion based on "mother tongue" is, effectively, dis- 
crimination based on ancestry. Surely, the intent of the^ Ontario Human 
Rights Code is to prohibit such effective discrimination based on ancestry 
even though the particular manifestation may be in language. 

This Board fully recognizes that this proposition is not without 
difficulty. As Mr. Hynna effectively emphasized on behalf of the Respon- 
dent, mother tongue is not always related to ancestry. A child of French 
descent, because of the geographical location and related social environ- 
ment in which his parents have become established, may be raised entirely 
in the English language. Similarly, a child of Anglo-Saxon descent may 
grow up with French as his mother tongue. Moreover, blood lines in 
Canada are becoming increasingly mixed. Ancestry may be difficult to 
determine. 

All of these are relevant considerations which raise difficult 
issues. Suppose, in the example given earlier with respect to the 
store-keeper, that the Francophone who was denied employment was entirely 
of Anglo-Saxon descent but was born and raised in Quebec City. In these 

* It is not necessary, for the purposes of this decision, to explore 
the relationship of these issues to "mother tongues" other than 
French . 

,../17 



r 



r 



r 



r 

1 



circunstances , his "mother tongue" could not be related to his ancestry. 
Therefore, in order to establish a contravention of the Code, he v;ould 
have to relate his mother tongue to another proscribed ground such as 
"place of origin". These are difficult and important issues which may 
have to be resolved in future cases or through legislation. 

Nevertheless, they do not detract from the basic reality that to 
permit discrimination based upon mother tongue is to open the door to 
discrimination based on ancestry in many situations. To permit prefer- 
ence in hiring for "Anglophones" may be an effective way of excluding 
many potential applicants who are of French descent just as to express 
preference for "Francophones" may be an effective way of excluding many 
potential applicants who are of non-French descent. It should be re- 
called, as well, that an intent to discriminate is not a necessary 
requirement in establishing a contravention of the Code. 

At the same time, extensive and detailed language requirements ofte 
will be completely justifiable in the context of the position in ques- 
tion. A store clerk must have sufficient language skills to communicate 
effectively with the clientele of the store. A politician from a pre- 
dominantly French-speaking constituency may require a speech-v:riter who 
can write comfortably and effectively in the language and usages of the 
area. An applicant may be fluent in French but without the special 
skills and sensitivity to language required in order to perform effec'- 
tively in this specialized role. 

The question then remains to be answered as to whether the termina- 
tion of the Complainant's employment constituted a contravention of the 
Code. This requires a consideration of Mr. Cousens ' employment perfor- 



r 



r 



e 



- 18 - 



7T\ance, his language capability, the language requirements of his posi- 
tion and the -^actors which led to the termination of his employment. 



Mr. Cousens came to the C.N. A. with considerable administrative 
skills and experience. He established a good working relationship with 
Dr. Parrott and appears to have been highly regarded by the members of 
the Board to which he reported. Nevertheless, the Executive Director of 
the C.N. A., Mrs. Mussallem, testified that even prior to 1975, she had 
been receiving numerous complaints about Mr. Cousens' performance. Indeed, 
there may well have been some tension between the C.N. A. General Manager 
and his staff on the one -hand and Mr. Cousens on the other. 

At the time of the integration of the Testing Service (and Mr. Cou- 
sens) under the direct responsibility of Mrs. Mussallem, she arranged 
for a review of the salaries for the Testing Service positions. This also 
involved interviews with the incumbents. As a result, Mrs. Mussallem 
concluded that Mr. Cousens' position was far too high on the scale. It 
was this conclusion which led to the "red-circling" and the decision to 
review Mr. Cousens' position as well as "the capabilities of the in- 
cumbent" by May 31, 1976. He was not informed of the latter aspect. 

A considerable difficulty arises in accepting this evidence of 
difficulties with Mr. Cousens' performance at face value. The "Perfor- 
mance Review and Evaluation" of Mr. Cousens for 1975 and up to May of 
1976 is extremely favourable. It was completed by Dr. Parrott, now 
Mr. Cousens' immediate superior. Amongst other things, it indicates 



. . ./19 



r 



19 - 



that his v7ork is "above average quality" and recommends a retroactive 
salary increase as well as an elevation in salary scale. 

Moreover, Mr. Bourque, who was ultimately hired to fill the nov; 
position of Administrative Manager described Mr. Cousens as capable in 
fulfilling his duties. Mr. Bourque worked closely with Mr. Cousens in 
the final m.onths of his employment with the C.N. A. and Mr. Bourque ' s 
observations are particularly helpful. 

Miss Iraai also spoke in generalities about complaints received in 
relation to Mr. Cousens. However, as with the testimony of Mrs. Mussal- 
lem, these are merely vague allegations. Dr. Parrott referred to a 
number of specific incidents involving "errors" made by Mr. Cousens. 
However, some of these complaints are so insignificant as to be termed 
petty. Throughout this period, there is no evidence of anyone discussing 
directly with Mr. Cousens any concrete and substantial concerns about 
his perf ormiance . 

Finally, on February 10, 1978, there is a meeting be-:ween Mr. Cou- 
sens and Dr. Parrott, in which he outlines a number of concerns. This 
meeting is documented in Dr. Parrott ' s notes and is followed by a series 
of additional memoranda expressing concern about the performance of Mr. 
Cousens. It may or may not be coincidential that it was early in 1978 
that Dr. Parrott commenced the structural review of the Testing Service 
with Miss Imai. 

In sum, there is very little evidence that Mr. Cousens was not 
performing adequately in his position. There is significant evidence ■ 
to the contrary. 

.../20 



r 



r 



c 



V7as there, nevertheless, a need to "upgrade" the position to en- 
coinpass responsibilities and require qualifications which Mr. Cousens 
v.'as not capable of meeting? Witnesses for the Respondent conceded that 
a Master's degree was not really necessary for the new position. This 
Board accepts Mr. Lederer ' s contention, on behalf of the Commission, 
that Mr. Cousens' Bachelor's degree together with his Army experience 
and training and his previous experience with the C.N. A. should be suf- 
ficient to satisfy the requirement of a Master's degree "or equivalent" 
(Ex. R-17). 

With respect to the duties and responsibilities of the Administra- 
tive Manager as compared with those of the Administrative Officer, the 
proof is "in the pudding". There is clear and compelling evidence that 
the requirements of the position were almost exactly the same after 
Mr. Bourque assumed the new position in February of 1979. Whatever may 
have been the hopes of the C.N. A. in establishing the new position in 
December of 1978, it turned out to be essentially the same position in 
1979. Even in concept, the differences ascribed tend largely to be 
ethereal . 

Was Mr. Cousens, then, dismissed because he was not sufficiently 
bilingual? The C.N. A. has an official policy that all senior officers 
be bilingual. The policy is admirable and, perhaps, crucial for an 
organization of this nature. However, it rings hollow as a reason for 
dismissing Mr. Cousens in this case. 



r 



r 



c 



- 21 - 



Mr. Cousens is not fluently bilingual. He has received consider- 
able French-language training while in the arri.ec ■forces in Quebec and, 
while there, was able to function in French. According to Mrs. Bourque , 
a former employee of the Testing Service, Mr. Cousens understood French 
very well. She observed that he understood what was being said in 
French. But clearly Mr. Cousens could not be described as "fluently 
bilingual" . 

There is considerable evidence that it was not necessary to be 
"fluently bilingual" in order to carry out Mr. Cousens' duties. Arrange- 
ments were available for translating letters and, after all, Mr. Cousens 
did function in this role for some seven years. Moreover, Dr. Parrott 
was in a more senior position and the evidence suggests that he had no 
capacity in French whatsoever. Surely, the need for bilingual capability 
would be far more serious in relation to this position. 

Was there now a need to have someone who was "fluently bilingual" 
in Mr. Cousens' position? If so, then the need arose rather suddently. 
In 19 76, Mr. Cousens had requested the opportunity to upgrade his skills 
in French. He understood that the C.N. A. had received funds from the 
Secretary of State to provide French-language training. According to 
his testimony, all that was required to enable him to receive this 
training was for the C.N. A. to declare his position bilingual. This is 
confirmed in his Performance Review and Evaluation for 1976 by Dr. Par- 
rott, which contains the following: 



. .t/22 



{ 



- 22 - 



2. Planned to upgrade French language communication 
skills . 

(No. 2 was not followed up - awaiting outcome of review 
of bilingual policies in which C.N. A. was engaged). 

His position never was classified as bilingual while he was with the 
C . N . A . . 

The job performance, the "re-organization" and the fact that Mr. 
Cousens was not fluently bilingual may all have been factors which led 
to his dismissal. However, when the facts are scrutinized, these fac- 
tors diminish in importance. A significant factor may have been, simply, 
the inter-play of personalities, Mr. Cousens certainly had, within the 
C.N. A., some detractors who did not hesitate to express their views to 
Mrs. Mussallem. She, in turn, seems to have had a very negative impres- 
sion of Mr. Cousens as early as 1975. His immediate superior and former 
personal friend, Dr. Parrott, .was not likely to be terribly supportive 
in the organizational review which he was conducting with Miss Imai in 
early 1978. His attitude to Mr. Cousens had changed dramatically. 

Was the fact that Mr. Cousens was not a Francophone, a factor in 
the loss of his position? The letter of termination dated December 22, 
1978, is strong evidence that it was a factor. Mr. Cousens was, in 
effect, to be replaced by a Francophone. Both Miss Imai and Mrs. Mus- 
sallem suggested that the term was used solely to indicate the require- 
ment of mastery of the French language. They claim that the use of the 
capital letter in "Francophone" was a typographical error. Mr. Lederer 
suggests that it may have been a Freudian slip. Not much importance 
is attached to it here. 

.../23 



r 



r- 23 - 



This Board concludes that a significant factor in the termination 
of Mr. Cousens ' employment was the fact that he was not a Francophone. 
Therefore, his termination was an act of discrimination against him, as 
a person of an ancestry which (in the absence of special social factors) 
would preclude him from ever acquiring the "mother tongue" of French. 

But this Board is prepared to go further. To express preference 
for a Francophone in addition to the requirement of being "fluently bill 
ngual", particularly where there is no compelling job requirement for 
"complete mastery" of French, raises the question as to whether only 
language was a factor. Why was such a thorough knowledge of French re- 
quired for this position? It is obvious that a French test development 
officer could properly be expected to have a "mastery" of the language 
but why should a lower echelon administrative officer? The expressed 
requirement is incongruous. Indeed, in Dr. Parrott ' s detailed notes for 
the December 13 meeting (R-17) the requirement for the new position is 
stated simply as "bilingual". 

The C.rJ.A. moved with alacrity in appointing Jean-Guy Bourque to 
the nev; position. It appears from Miss Imai ' s testimony that his name 
was under consideration prior to the December 13 meeting informing Mr. 
Cousens of his termination. While he is a Francophone and a French- 
Canadian, Mr. Bourque does not seem to possess that complete mastery of 
French which _had been considered to be so desirable. Mr. Bourque, who 
was a frank and forthright witness, spoke of his interview for the posi- 
tion in question prior to Christmas of 1978: 



i 

r 



r 



2 4 



Well, I indicated at that time that I was bilingual. 
However, my higher education had been mostly in English. 
And I certainly felt more capable of comjnunicating in 
English, because of that fact. 

As discussed earlier, Mr. Bourque carried out essentially the same 
responsibilities as Mr. Cousens had assumed previously. 

Reference has already been made to the anxiety which was created 
in 1978 because of the failure of the Quebec Order of Nurses to make a 
firm commitment to purchase the French comprehensive examination. In 
the middle of 1977, the Testing Service lost one of its three French 
test development officers. In March of 1978, the senior of the two 
remaining officers, Mr. Desmarais, also left. Mr. Desmarais had acted 
as a supervisor in relation to the French exam and had acted as a liaison 
with Quebec representatives. 

In a letter dated October 3, 1978, the Quebec Order of Nurses ex- 
pressed its concern about the absence of a francophone or a "perfectly 
bilingual" person to direct the development of the French language exam. 
Of course, a "mastery" of French would be essential to this position. 
However, it had been advertised for some time without success. The 
demands of the Quebec Order were well known and were referred to by a 
number of witnesses. Their representatives began to speak only French 
at C.N. A. meetings and they were pressing to have the C.N. A. increase 
its bilingual staff. 

Lorraine Marie Bourque (no relation to Jean-Guy Bourque) was an 
English test development officer with the Testing Service from 1972 to 



./25 



t 



€ 



r 



r 25 - 



1980. Since French was her mother tongue, she had been invited to work 
on the French exam. Her reasons for declining are of interest: 

I had made it known that I would never work with the 
French exam, because I felt that the nurses from Quebec 
would not be happy with my services, because I am a 
French-speaking person from New Brunswick; and the 
people in Quebec do make .a distinction between New 
Brunswick and Quebec . 

This passage suggests that, whether articulated or not, the expectations 
of the Quebec Order may have extended beyond facility in language. 

, It is no secret that, on accasion, public institutions face pres- 
sures to employ persons of different ethnic backgrounds. Reference might 
be made, merely in passing, to a public report to the City of Ottawa by 
the Bradet Committee, in March of 1980, recommending the expansion of 
French-language municipal services and the staffing of certain positions 
by "employees of the respective cultural groups". ( Ottawa Citizen , June 
2, 1980) . There is no direct evidence that the Quebec Order of Nurses 
was applying pressure to have French Canadians (as opposed to bilingual 
persons) appointed by the C.N. A.. On the other hand, one would not ex- 
pect pressures to be applied blatantly in such sensitive circumstances. 
The delay in confirming the adoption of the French comprehensive examina- 
tion and the general posture of the Quebec Order may have made a subtle 
impression upon the officers of the C.N. A. just as one had been created 
in the mind of Miss Bourque . 

One of the Quebec nurses had expressed directly to Miss Bourque 
the concern that the Director of Testing Service, Dr. Parrott, could 



. ./26 




r 



not speak French. Lise Cecile Johnson worked as Dr. Parrott ' s secretary 
from 1977 to 1979. French is her mother tongue and she is fluently 
bilingual. She observed that Dr. Parrott was anxious to surround him- 
self with bilingual people. She testified that v;hen she started working 
for Dr. Parrott in January of 1977 he was an easy person to work for, 
but after a few months it became "increasingly difficult until finally 
it was unbearable". There was other evidence, as well, of difficulties 
in working with Dr. Parrott. There appears to be little doubt that he 
was experiencing severe pressure during this time. 

Of course, the officers of the C.N. A. may have been entitled to 
terminate Mr. Cousens ' employment. It may have been extremely desirable 
to have a fluently bilingual person (which he was not) in this position. 
However these do not appear to have been the main concerns of the C.tT.A. 
The evidence simply does not support the view that he was incompetent. 
The new position was almost identical to the old. The earlier position 
was not designated bilingual and he was denied the opportunity to take 
language training funded by the Secretary of State. The C.N. A. did not 
seek a person who was fluently bilingual but sought one whose mother 
tongue was French A complete "mastery" of French was stated to be the 
reason although there is no suggestion that the position required such 
skills. Meanwhile, the C.N. A. was facing intense pressure from the 
Quebec Order of Nurses. 

There is certainly no direct evidence that what the C.N. A. really 
sought to do was to dismiss Mr. Cousens so that they could hire a French 
Canadian. There very seldom is direct evidence of discrimination in 



./27 



27 ^ 



these cases. Often it can only be proven by a pattern and coincidence 
of events coupled by the hollowness of explanations offered. In this 
case, the balance of circumstances leads to the conclusion that the real 
preference in employment, whether conscious or unconscious, v;as for a 
French-Canadian. 



The Code provides that: 

14c. The board, after hearing a complaint,... 

(b) may order any party who has contravened this Act to 

do any act or thing that, in the opinion of the board, 
constitutes full compliance with such provision and 
to rectify any injury caused to any person or to make 
compensation therefor. 

Counsel for the Commission requested that the order of this Board re- 
quire a letter of apology to Mr. Cousens and the posting of a human 
rights poster in the C.N. A. premises informing employees of their rights 
under the Code. In addition, he requested that the Commission be per- 
mitted to write a memorandum to each of the employees of the C.N. A. 
informing them of their rights under the Code. 

Such an order is inappropriate in this case. The facts do not 
establish a clear intention to discriminate on the part of the C.N. A.. 
While intent is not a condition of establishing a contravention, it is 
relevant to the order which should be made. Nor is there any evidence 
of a general pattern of discrimination by the C.N. A. against its employees. 
In these circumstances, the poster and memorandum are not appropriate 
either. 



. . ./28 



r 



- 28 - 



Counsel for the Commission also requested monetary compensation 
for Mr. Cousens equal to the equivalent of three months pay as well as 
a sum to represent "loss of dignity". Counsel for the Respondent made 
no submissions with respect to the order which should be m.ade if a 
finding of discrimination should occur. 

In all of the circumstances, the proposal of the Commission is 
reasonable. It is ordered that the Respondent pay the Complainant a 
sum of money equivalent to three months of salary at his last salary 
level while an employee of the Canadian Nurses Association. 

Mr. Cousens suffered considerable stress and some illness as a 
result of the loss of his employment. It took some eighteen m.onths 
for him to re-establish himself and he suffered considerable loss of 
dignity as a result. In all of the circumstances, it is further ordered 
that the Respondent also pay to the Complainant the additional sum of 



$1000 . 



Dated, this 23rd day of March, 1981 




r 



( 



r